Separating & need to divide your property?

When couples separate, decisions need to be made around the division of shared property, which includes houses, superannuation, general assets like cars and furniture, and bank accounts.

I understand the stress couples go through when they separate. I’ve found couples feel more in control if they understand the process, and the options available to them. This page helps explain the Property Diagram and will give you an overview of your options. 

If you and your ex-partner AGREE

You can come to an agreement about dividing your property without the help of lawyers or mediators.

A ‘Property Settlement’ can be drawn up, which lists all the shared assets, and identifies who gets what. Note that you can’t change the property settlement once you have been divorced for 12 months.

If you’d like to formalise the agreement and make it binding, you can take the agreement to a lawyer, who will prepare a ‘Consent Order’ or Binding Financial Agreement*.

*Refer to the Frequently Asked Questions page on our website for more information.

If you and your ex-partner CANNOT AGREE

Option 1:   Go to Mediation

An experienced and skilled Mediator will help you and your partner work through the issues causing conflict, then will help you decide how to divide the shared property. I often recommend a one hour coaching session before mediation occurs, as this will show you how to get the most out of the mediation.

Once an agreement has been reached, the Mediator will refer you to a Lawyer to formalise the agreement into a Consent Order or Binding Financial Agreement.

If you can’t agree, or if one of you refuses to go to mediation, your mediator will refer you to separate Lawyers. The lawyers will work together to try to come to an agreement. If they succeed, the lawyers will then prepare the Consent Order of Binding Financial Agreement.

If you are still unable to agree, even with the help of Lawyers, you will need to go to Court. Your own Lawyer will prepare your individual case, then organise a Barrister to go to Court. This is the most expensive option, with legal fees ranging from $50,000 to more than $200,000. It may be 2 years before your case if finally heard – and it is the judge who decides what happens to your property.

Option 2:   Go to separate Lawyers

Some people who can’t agree, go straight to separate Lawyers rather than going straight to mediation. The process is the same as I’ve just discussed – if the Lawyers can help you come to an agreement, you can get a Consent Order of Binding Financial Agreement drawn up.

If you can’t agree, then the Lawyers will refer you to a Mediator. The process from here is the same as above – if the mediation is successful, you’re referred to a Lawyer to formalise the agreement. If it’s not successful, you’ll have to go back to your Lawyers to start the Court process. The whole process can take up to 2 years, and going to court is the most time consuming and costly option – with court fees ranging from $50,000 – $100,000.

With Property, sometimes there is conflict over the amount and value of property. One person may feel like the ex-partner is not revealing all their assets. If this is the case, your separate Lawyers will prepare your cases, then organise Barristers to represent you in court to determine the full extent of property. Once this is determined, your Lawyers will refer you to a Mediator, who will work with you to help you come to an agreement.

Depending on the success or otherwise of the mediation, you are either able to move forward with a Consent Order of Binding Financial Agreement; or you need to go back to court through your Lawyers. Remember, this process can take up to 2 years and be expensive.

Obviously, the least expensive and fastest way to reach an agreement is through Mediation. You decide together what happens with your property. Often communication between a couple improves through the process of mediation too, and the level of conflict is minimised – which is obviously better for any children involved.

Need more information?

I hope this has helped explain the process and options available to you. I’m also happy to discuss your individual circumstances over the phone and help you work out the best process for you.

Whatever stage you are at, please feel free to call me if you have any questions. Call 0419 679 779.